The opinion of the court was delivered by: Murphy, District Judge:
Defendants move to dismiss three of four claims raised in Plaintiff Desmond Phipps's complaint. Mr. Phipps's claim arises from his arrest by Village of Cahokia police officers on September 11, 2009. Mr. Phipps alleges that Defendants, officers with the Village of Cahokia Police Department, entered his apartment and detained him without probable cause, physically and verbally abused him, and fabricated a story to cover their actions and to have criminal charges brought against him. Mr. Phipps filed this suit on February 25, 2011 alleging that his arrest and prosecution deprived him of his Fourth, Sixth, and Fourteenth Amendments under the U.S. Constitution and violated Illinois state law. Currently before the Court is Defendants' 12(b)(6) motion to dismiss three of Mr. Phipp's four claims. For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss.
Mr. Phipps contends that he was lawfully inside his apartment at 15 Lambert Drive in Cahokia on September 11, 2009 when Defendant officers entered at approximately 12:30 a.m. Defendants were unable to identify Mr. Phipps when they entered the apartment. Nevertheless, Mr. Phipps claims, they placed him in handcuffs and struck him in the mouth with a police-issued pistol. Defendants then dragged Mr. Phipps outside his apartment by his feet, face-down and handcuffed, to a patrol car and took him into custody. In addition to physical abuse, Mr. Phipps claims he was the subject of verbal harassment.
Mr. Phipps was charged with resisting arrest in violation of 720 ILCS 5/31-1(a). He claims that Defendants fabricated the details of the arrest to "cover" their abuse during his arrest and to support the criminal charge. On August 4, 2010, Mr. Phipps was convicted of resisting arrest. Yet, less than ten weeks later, on October 14, 2010, his conviction was vacated after the trial court granted Mr. Phipps's motion to reconsider. (Doc. 20, Ex. 4, 11-147-GPM).
On February 25, 2011, Mr. Phipps filed a complaint raising four federal and state claims: Count I: a 42 U.S.C. § 1983 claim against the officers for false arrest; Count II: a § 1983 claim against the officers for excessive use of force; Count III: an Illinois state law claim against the officers for malicious prosecution; and Count IV: an Illinois state law claim seeking to hold the Village of Cahokia vicariously liable for malicious prosecution. Defendants now seek to dismiss Claims I, III, and IV for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Doc. 18).
In their motion to dismiss, Defendants referred to, and attached as an exhibit, a warrant purportedly issued for Mr. Phipps's arrest. As a result, this Court construed the motion to dismiss as a motion for summary judgment. (Doc. 21). On February 3, 2012, Defendants sought to withdraw the warrant and to have the motion reconstrued, as originally captioned, as a motion to dismiss. As a result, currently before the Court is Defendants' motion, which, when stripped of the arrest warrant and any argument made in reliance, is properly styled as a motion to dismiss Claims I, III, and IV under Rule 12(b)(6).
In a complaint, the plaintiff must provide the defendants with "fair notice" of his claims and the basis for them. Indep. Trust Corp. v. Stewart Info. Servs. Co., 665 F.3d 930, 934 (7th Cir. 2012) (citations omitted). In addition, to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must state a claim for relief "that is plausible on its face." Id. quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 934-35. While "[s]pecific facts are not necessary," the pleaded facts must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007). The allegations need not be likely; rather, "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (internal quotations omitted).
In reviewing a motion to dismiss under Rule 12(b)(6), the Court "must construe all of the plaintiff's factual allegations as true, and must draw all reasonable inferences in the plaintiff's favor."
Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011). "However, legal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption." Id.
Plaintiff's Claim I: False Arrest
Mr. Phipps alleges that Defendants did not have probable cause when they detained and took him into custody. For the § 1983 false arrest claim to survive a motion to dismiss, Mr. Phipps must allege that he was arrested without probable cause. See Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir. 2009). Defendants correctly note that the existence of probable cause is an absolute defense to a § 1983 false arrest claim. See id; see also Sow v. Fortville Police Dept., 636 F.3d 293 (7th Cir. 2011) quoting McBride v. Grice, 576 F.3d 703, 707 (7th Cir. 2009). If Defendants had probable cause to arrest Mr. Phipps for any offense, and ...